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3 November 2016

I thought Britain voted to leave the EU, not to set the clocks back to 1950

When will the self-described "liberal Leavers" stand up against the illiberal turn of our politics since 23 June?

By Stephen Bush

I’m often confused by what time it is when the clocks change, but someone at the Mail appears to have set theirs all the way back to the 1990s.

In a now-amended headline, the Mail attacked the three judges who have ruled that Parliament, not Downing Street, must be the ones to pull the trigger on Article 50, as the “the judges that blocked Brexit: One founded a European law group, another charged the taxpayer millions for advice and the third is an openly gay ex-Olympic fencer”.

It’s worth noting for a moment – and this is not the biggest problem with the headline but it speaks directly to it – that today’s judgement has not blocked anything. It has ruled that power to leave the European Union rests not with the executive but the legislature. The best that can be said about any politician or media organisation talking about the courts “blocking Brexit” is that they’re woefully misinformed – the worst is that they are actively trying to mislead.

In any case, for the crime of deciding that responsibility rests in one branch of the government over another, the three judges in question have been the subjects of a smear job on the Mail website. John Thomas, the chief presiding judge, is lambasted for having founded “a EUROPEAN law group” (emphasis the Mail’s, not mine). Thomas is a founder of the European Law Institute, which aims to integrate law across the continent where possible.

I have bad news for the Brexit crowd: even the most drastic break with the European Union is not going to mean that there isn’t a need for harmonisation of some law between Britain and the continent, unless the post-Brexit world is one in which no-one in the United Kingdom sells anything to the continent, travels to the continent, falls sick on the continent, dies on continent, is the victim of a cross-border fraud, banks with an international bank, falls in love with someone from another European country or takes a job in a European country.  

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A eminent judge is effectively being attacked for being good at his job, something which ought to be a breath-taking occurrence but instead feels as routine as the falling of leaves in Britain nowadays. It can only be a matter of time before someone is attacked by the Brexit boosters for having books on their shelves.

Philip Sales, meanwhile, is coming under fire for charging the taxpayer “millions”. To put it plainly, the charge against Sales is that while being an eminent legal professional, he was paid for doing his job. Again, an attack that ought to be more surprising than it is but instead is becoming as commonplace as Muzak.

But it’s the third that’s really shocking. While founding “a European law group” and being paid to turn up to work ought not to be sources of ire, they are clearly written up to be signs that the judgements of Thomas and Sales are not to be trusted. They’re not “normal” like you and me. Their judgements aren’t in the interests of honest Britons – who, of course, all voted for Brexit, unlike the 16 million Remainers, who all live in Islington anyway.

That’s the context in which the description of Terence Etherton as “openly gay ex-Olympic fencer” – now deleted from the headline but still riddled through the copy – is being used. These things are not normal, you see, which is why he’s taken the sinister decision to vest the power to leave the European Union in the hands of a group of politicians in the Houses of Parliament and not in the hands of one politician in Downing Street.

It’s becoming increasingly clear that, whatever the merits or demerits of leaving the European Union, the Brexit vote has been taken as a licence for a hard-right fringe to come scuttling out of the dark. We can see that in the spike in hate crimes that occurred immediately after the Brexit vote, and we can see that with the revival of homophobic tropes that had been increasingly marginalised in public life.

I wish that those self-described “liberal Brexiteers” with a public platform – like Douglas Carswell, today calling for the government to be given the power to remove judges it dislikes – would rail against that, rather than verdict that will merely change which part of the British government will trigger the process whereby Britain leaves the European Union.